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NLRB again has social media policies in its crosshairs

In an Advice Memorandum written in 2012 and recently released pursuant to a FOIA request, the NLRB Associate General Counsel, Division of Advice, addressed the legality of a social media policy that prohibited employees from, among other things, “us[ing] any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which include confidential information owned by the Company.” The Associate General Counsel concluded that the policy at issue unlawfully chilled employees’ ability to exercise their Section 7 rights. The Advice Memorandum provides further evidence of the Board’s scrutiny of employer social media policies, and of second-guessing of employers’ legitimate interests in promulgating such policies.

The employer sought to implement a social media policy which identified restrictions on the employees’ use of non-public information:

You [the employee] have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies…or about other Associates, customers, suppliers, or business partners. If you have questions about what is confidential, ask your manager.

Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which include confidential information owned by the Company, unless you have received the Company’s prior written approval.

Do not defame or otherwise discredit the Company’s products or services….

Speak up if you believe anyone is violating these guidelines or misusing a Company-sponsored site. Please submit such reports to your manager and provide as much specific information as possible….

Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.

In the Advice Memorandum, the Associate General Counsel concluded that the policy violated the employees’ Section 7 rights because employees reasonably would construe the policy to restrict Section 7 activity. The Advice Memorandum observes that the policy’s prohibition of posting confidential or non-public information, in the absence of clarification, was so vague that an employee could reasonably construe it to include information about terms and conditions of their employment.

The Associate General Counsel also concluded that the prohibition of use of the employer’s logo, marks, and graphics was unlawful because engaging in non-commercial conduct protected by Section 7 would not interfere with the employer’s proprietary interests in its logo, marks and graphics. The prohibition against photographing or videotaping the employer’s premises was also found to be unlawful because it could unreasonably prevent an employee from using social media to communicate and share information regarding activities protected by Section 7, such as picketing or other concerted activities. And, the “savings clause,” or general disclaimer found in the social media policy, did not adequately inform employees that protected activities are in fact permitted.

The Associate General Counsel, however, concluded that the prohibition against defaming the employer or other employees was not unlawful, because such actions are not protected by Section 7. Moreover, the requirement to report infractions of the policy was not unlawful because it does not restrict communication or threaten discipline and, once the unlawful provisions were removed from the policy, there was no threat that this section would restrain or chill activity protected by Section 7.

All employers, including those who employ non-union workers, should take note that social media policies continue to be in the crosshairs of the Board. For better or worse, social media platforms are replacing the town square as public fora for discussion. The Board, as currently constituted, is skeptical of general disclaimers. While drafting a policy that disclaims each and every possible chilling of a Section 7 right would result in unwieldy policies, this Advice Memorandum and previous advice and opinions of the Board demonstrate that a detailed cataloguing of specific examples of prohibited conduct may now, in effect, be required to pass muster under the Act. Employers should proceed with caution because the Board is lurking.